ban Dismiss a pregnant woman and even more so if so For an insufficiently proven reason, it doesn’t have to be this way. consequential compensation for moral damage. This was established by the Supreme Court in a decision to which El Periódico de España of the Prensa Ibérica group had the right of access, which confirmed the inadmissibility of the dismissal of a person. Royal Spanish Football Federation employee Although in October 2021, during the presidency of Luis Rubiales, he denied that additional compensation should be paid for discrimination.
The decision, published on December 12 by the Social Chamber of the Supreme Court, confirms what the Madrid court and later the Supreme Court of Justice said about the case, also in relation to a worker. wife of former head of legal services Kepa Larumbe, who was a member of the Federation before the Rubiales era. The woman had been serving in this institution since March 2012 and was dismissed along with other colleagues in October 2021.
In the dismissal letter “persistent and voluntary decrease in performance Although she was “normal in her job”, the 9th Social Court of Madrid declared the dismissal null and void as soon as the woman notified the company that she was pregnant, i.e. the moment she received the notification. Condemned the Federation to readmit him immediately paid him his outstanding wages but did not respond to his request for compensation for the violation of his right to equality and non-discrimination.
This case, as the Supreme Court acknowledged in its decision, secular doctrine Regarding an ongoing issue: In the case of a disciplinary investigation against a pregnant woman for which the reason cannot be proven, determining whether there is a declaration of invalidity in connection with the violation of equality and fundamental rights. – Discrimination must always be accompanied by compensatory compensation for non-pecuniary damage.
The answer is negative because this compensation can only be when a “specific violation” is proven the right to equality and non-discrimination or any other fundamental right or right to public liberty”, but this is not the case in this case.
The Supreme Court, in agreement with the lower court, recalls: dismissal of worker RFEF “invalid due to legal obligation “It is a situation arising from the fact of pregnancy, whether the defendant (company) knows it or not”, but this does not automatically mean that it violates the fundamental right not to be discriminated against on the basis of sex for the purpose of compensation.
He concludes in this case: “Discriminatory intent or violation of fundamental rights was not proven even by the failure to appreciate the existence of an indicative panorama of discrimination that allowed the application of the norm in question.”
Risk of job loss
At this point, the decision reminds us of the doctrine of the Constitutional Court, which recognizes that “working women are likely to be at risk of job loss due to maternity.” The most important problem besides wage inequality is It challenges the effectiveness of the principle of non-discrimination based on gender in the field of labor relations”.
The Supreme Court adds that the importance and seriousness of this problem is revealed by the data revealed by the statistics on the number of women who, unlike men, have to leave their jobs due to this situation, and even by itself reiterating that there are such problems. It had to be resolved with justice.
But the purpose of facing this “challenge” does not imply The instrument chosen by the legislature to express clearly cannot consist of the following; objective and automatic warranty“. Therefore, companies are required to “contribute”. Objective and reasonable justification, The measures taken “regarding its employees” and their proportionality have been sufficiently proven.
Therefore, in this case, there are factors that point to a different direction of discriminatory motive, because the company learned about the worker’s pregnancy during the delivery of the letter He stated that he made the decision to be dismissed and that his departure from the Federation coincided with the departure of five other workers. In this case, the penalty should be limited to “the typical consequences of any declaration of invalidity: restitution of fees not received and condemnation.”